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March 10, 2023

New ABA Policy on Dementia and the Criminal Justice System

David Godfrey

The entire PDF in which this article appears can be found here. 

Based on the research the Commission on Law and Aging concluded last summer, we drafted and submitted for approval by the ABA House of Delegates the following policy statement.

American Bar Association
Adopted by the House of Delegates
February 6, 2023


RESOLVED, That the American Bar Association urges all federal, state, local, territorial, and tribal legislative bodies, as well as governmental agencies to adopt laws, policies, and practices to recognize and address the complex issues associated with persons involved in the criminal justice system who are living with dementia;

FURTHER RESOLVED, That the American Bar Association urges all federal, state, local, territorial, and tribal governments to:

a) train judges, prosecutors, defense lawyers, law enforcement officers, correctional personnel, probation, and parole officers to recognize and screen for dementia and understand its impact on an individual’s understanding, behavior, decision-making, communication, and judgment; and

b) develop collaborative initiatives between the criminal justice system and healthcare providers to create care settings for persons living with dementia who have histories of violence; and

FURTHER RESOLVED, That the American Bar Association urges all federal, state, local, territorial, and tribal courts to use diversion to community resources rather than utilizing commitment for restoration of capacity when a defendant who is found unable to stand trial because of dementia and there is reliable evidence that the individual’s capacity is unrestorable.

Why this policy?

This policy urges action on the core issues revealed in the research we concluded last summer on dementia and the criminal justice system.  

A core finding across the spectrum of the research was a need for training in recognizing when a persons’ actions may be a product of Alzheimer’s or other dementia, and how neurocognitive illnesses like Alzheimer’s change a person’s judgement and behavior. Ohio is leading the way with statewide training being provided for correctional personnel. 

There was universal agreement that care placement for a person living with dementia and a history of violent acts, is impossible or nearly impossible.  There are pilot projects to build specialized care facilities either as part of correctional systems, or by private enterprise in the community that balance appropriate care with public safety.  Much more is needed on this, and it will be expensive and likely require government initiative. 

The research found that in most jurisdictions when a person is found unable to stand trial, the person is committed to a mental hospital for restoration of capacity.  A process that for a person with Alzheimer’s or similar progressive neurocognitive decline is destined to failure.  And the policy urges changes in the practice when the experts agree that restoration is unlikely to happen because of the nature of the persons illness. 

There were other issues generated in the research, the issues in this policy had universal agreement from all sources, and we believe are most likely to be addressed with reform. Once again, we thank the RRF Foundation for making the research possible.

Why Is Policy Important?

Without policy, the ABA cannot take a position on an issue.  The ABA can say things like research says, or many experts believe, but the ABA can’t say, the ABA urges action for or against a proposed law, regulation, or policy unless we have policy. The American Bar Association is the largest group of attorneys in the Country, when the ABA is able to speak, it matters.  Without policy, the ABA has to sit on the sidelines. It is painful when that happens. 

How is Policy Made?

Policy proposals start as idea either in ABA entities, ABA affiliate bar associations, or state and local bar associations.  There is a process for drafting, the Resolution and accompanying Report that is really the legal brief in support of the proposal. Draft policies are reviewed by the moving group, by other entities that have an interest in the subject, by a panel of experts, and then circulated for comments.  There are formats, technical rules, style rules, and deadlines. Proposals are considered by the ABA House of Delegates twice a year, at the ABA Annual Meeting in summer (usually early August,) and the ABA Mid-Year Meeting in winter (generally early February.)  The House of Delegates has over 400 voting members, representing ABA entities, affiliated bar associations, state and local bar associations and delegates selected at large from the ABA membership. If you are interested, get to know the delegates from your state.  

There are various rules of procedure to follow.  The person speaking for or against a draft policy, must either be a member of the House, or be granted permission to speak by the House.  The speakers must then register their intent to speak for or against a particular draft policy (a process known as a Salmon Slip, because the form to speak on a proposal has traditionally been on salmon color paper.) 

While most concerns are worked out before proposals come to the floor, some proposals are hotly debated on the floor with speakers for and against speaking in rotation until all have spoken or until a vote is called for.  On most proposals a simple majority vote passes the proposal. 

When you attend an ABA Mid-Year or Annual meeting, plan to stay over and watch the House of Delegates (it is most often on Monday following the meeting.) 

The House of Delegates policy process is an opportunity to shape what the ABA says.  If you want to become involved, become active in ABA entities and you can be a part of it. Not all proposed policies are adopted. The goal is for policy to represent a majority of our members.  Not all members will agree with all policies, reasonable people can disagree on issues and still unite on the bigger picture of justice for all. If we all agreed, we would only need one lawyer. 

What is Next in Policy?

The Commission on Law and Aging is collaborating the Section of Civil Rights and Social Justice on draft policy on a bill of rights for person who have had a guardian appointed, and fundamental due process protections, that we hope to bring to the House of Delegate at the Annual Meeting in Denver this August.  

David Godfrey, JD

Director, ABA Commission on Law and Aging

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